Civil Liberties & Terrorism

Readings and activities on wartime threats to civil liberties, the history of such threats, and the Constitutional basis for civil liberties.

by Alan Shapiro

To the Teacher:

Since September 11, Congress has passed legislation to combat terrorism, the president has ordered that military tribunals try certain accused terrorists, and the Department of Justice has issued regulations on surveillance, interviews, and detentions. These measures, which affect non-citizens who in the past have received most of the Constitution's rights and protections, have raised important civil liberties issues. While such issues are always with us, students and teachers have an unusual opportunity to study and discuss them now while they are receiving much attention in the news and being debated. This, in short, is an especially teachable moment.

Teachers might use the following three lessons as a short unit and possibly extend it with the student inquiries suggested at the conclusion. They could also integrate the lessons into regular curricular study of the Constitution and Bill of Rights, the Civil War, World War I, or World War II.

LESSON ONE

1. Distribute STUDENT WORKSHEET l, "Questionnaire," and ask students to respond "Yes" or "No" to each question.

2. Divide the class into small groups. Ask students to compare their responses to the questionnaire, discuss them briefly, and name a reporter to summarize agreements and disagreements.

3. Have reports presented to the class.

4. The questionnaire, of course, raises Constitutional issues. Before considering them, have students examine in their texts or have reproduced for them and distribute the following sections of the Constitution:

Article I,Section 9, paragraph on habeas corpus:
"The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it."

Amendment I:
"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances."

Amendment IV:
"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

Amendment V:
"No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."

Amendment VI:
"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense."

Amendment XIV, Section 1:
"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

5. For discussion: According to the Constitution and its amendments, does the government have the right to do the things listed in the questionnaire? Which ones, if any, and why? Which ones, if any, does it not have the right to do and why? Encourage student questions, list them on the chalkboard for later consideration, and have students write them in their notebooks. (A rationale and a method for examining and studying questions appears in Lesson One of another set of lessons on this website, "Oil: Saudi Arabia, the United States and Osama bin Laden.")

6. Assignment: Distribute STUDENT WORKSHEET 2. Ask students to read and study the reports of civil liberties cases in wartime. They are then to write down and bring to class three questions which, if answered well, would help them to understand better anything about the cases or the parts of the Constitution at issue.

Student Worksheet 1:

QUESTIONNAIRE

Imagine that the U.S. government suspects that you know about terrorist activities or are a terrorist. Should the government have the right (check Yes or No):

To obtain your business and medical records because you rented a room in your house to a terrorist suspect.

To search your home without a warrant.

To tap any telephones you use and to keep your computer under surveillance.

To put you in prison indefinitely without specific charges while it looks for evidence of your association with terrorists.

To keep your identity secret while you are in prison.

To try you before military judges, not a civilian jury.

To listen in on your conversations with your lawyer.

To use hearsay evidence against you in your trial.

To keep you in prison even if you have been acquitted of all charges.

To prevent you from appealing the decision.

Student Worksheet 2:

THREE CIVIL LIBERTIES CASES IN WARTIME

The Civil War

Early in the Civil War President Abraham Lincoln ordered that any person who discouraged voluntary enlistments, resisted the draft, or helped the Confederates should be tried and punished by a military commission.

Lambdin P. Milligan, a civilian living in Indiana and a member of the Sons of Liberty, an organization accused of revolutionary aims against the government, was arrested in 1864. He was charged with conspiracy, giving aid and comfort to the Confederates, and inciting people to insurrection. The Indiana civil courts were open at the time, but Milligan was tried by a military commission, convicted, and sentenced to hang.

Milligan sought a writ of habeas corpus, claiming that his trial had been illegal because the military commission had no jurisdiction over the case.

In 1866 the Supreme Court ruled in Milligan's favor and set him free, declaring: "Martial law can never exist where the courts are open, and in the proper and unobstructed exercise of their jurisdiction. It is also confined to the locality of actual war." Milligan, the Court said, had been denied a trial by jury. "This privilege is a vital principle, underlying the whole administration of criminal justice..." If a military commander has the power "to suspend all civil rights and their remedies, and subject citizens as well as soldiers to the rule of his will...republican government is a failure, and there is an end of liberty regulated by law."

World War I

After the United States declared war on the Central Powers in April 1917, Congress passed the Espionage Act, which threatened imprisonment to those "urging treason, insurrection, or forcible resistance to any law of the United States." Charles Schenck was arrested and convicted for violating the act because he printed and distributed to draftees leaflets urging them to refuse to go into the armed forces.

Schenck took his case to the Supreme Court, arguing that his conviction had violated his First Amendment rights of freedom of the press. In a unanimous decision, the Court upheld his conviction. Justice Oliver Wendell Holmes wrote that "in ordinary times" what was said in the leaflets would have been "protected by the First Amendment to the Constitution.... But the character of every act depends upon the circumstances in which it is done. The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic...." The question, he wrote, "is whether the words used...are of such a nature as to create a clear and present danger" that bring about "evils that Congress has a right to prevent....When a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight."

World War II

At the time of the Japanese attack on Pearl Harbor on December 7, 1941, more than 100,000 people of Japanese background lived on the west coast of the U.S. More than half, mostly young people, were American citizens. Most older Japanese were not citizens because U.S. laws at the time did not permit citizenship for them.

Within days a report from San Francisco said that 20,000 Japanese living there were ready to attack the city; in Los Angeles radar screens showed unidentified flying objects and antiaircraft guns opened fire; near Seattle reports warned that enemy agents planned huge forest fires in the shape of an arrow aimed at the city. People on the west coast were very jittery.

On February 19, 1942, President Franklin D. Roosevelt issued Executive Order 9066, which provided for the removal of all ethnic Japanese, whether they were citizens or not. Forced to leave their homes and most of their belongings, they were first taken to fairgrounds, camps, and racetracks, then moved a few months later to permanent relocation camps in desert and uninhabited areas of California, Arizona, Idaho, Wyoming, Colorado, and Utah. They lived in barracks and worked at unskilled jobs like harvesting sugar beets, for which they earned $8 a month. Doctors and teachers might earn as much as $19.

One Japanese man, Fred T. Korematsu, fought efforts to remove him from his home in San Leandro, California, to the Supreme Court. But a 6-3 majority ruled against him. The removal order, the Court said, had resulted from a threat to the security of the United States, not because of hatred of the Japanese or their race. Justice Hugo Black wrote, "There was evidence of disloyalty on the part of some. The military authorities declared the need for action was great and time was short."

Writing in 1984 in a reopened case that erased Mr. Korematsu's conviction, District Judge Marilyn
Hall Patel, said of the earlier decision, "It stands as a caution that in times of distress the shield of
military necessity and national security must not be used to protect governmental actions from close scrutiny and accountability. It stands as a caution that in times of international hostility and antagonisms our institutions, legislative, executive and judicial, must be prepared to exercise their authority to protect all citizens from the petty fears and prejudices that are so easily aroused."
Many years after the war, ethnic Japanese who had suffered relocation received some payment in compensation.

LESSON TWO

1. Discuss each of the three cases, focusing on issues in conflict:

Milligan: habeas corpus and right to a fair trial v. national securitySchenck: freedom of the press v. national securityJapanese removal: deprivation of life, liberty and property v. national security

Ask students for their questions on each case. Which can the class answer? What questions remain unanswered from each of the two sessions? Keep the list on the chalkboard and have students update their notebooks.

2. Distribute STUDENT WORKSHEET 3 and have students read and study it in class as well as write in their notebooks any questions whose answers would help them understand the controversial issues of detention and military commissions better.

3. Assignment: Divide the class into two groups. Students in Group 1 are to come to the next class prepared with notes on facts and arguments that support the measure on detention and oppose military commissions. Students in Group 2 are to be prepared with facts and arguments that oppose the measure on detention and support military commissions. In addition to the information and points of view presented on Student Worksheet 3, students might also gather information and arguments from the Constitution and any other sources they think relevant. Encourage discussion with friends and family members.

Student Worksheet 3:

GOVERNMENT ACTIONS TO FIGHT TERRORISM

Since September 11, 2001 Congress has passed an antiterrorism law, the U.S. Patriot Act, and President Bush's administration has taken steps it maintains will strengthen the U.S. in the fight against terrorism. Some of these measures, however, are being seriously questioned and actively opposed by individuals and groups, primarily on the grounds that they endanger Constitutional provisions protecting civil liberties. Two of them are described briefly below along with arguments pro and con.

1. DETENTIONS

Congress approved the U.S. Patriot Act on October 25, 2001, and President Bush signed it into law the following day. It includes provisions expanding the government's authority to wiretap and to monitor computers, allowing federal officials to obtain nationwide search warrants, and enabling penetration of money-laundering banks.
As of April 2002 more than 1100 non-citizens, mostly of Middle Eastern or South Asian descent, had been detained for months. Authorities will not reveal who they are or why they are being held.

Support for the Detentions

a. Aggressive detention policies are "vital to preventing, disrupting or delaying new attacks. It is difficult for a person in jail or under detention to murder innocent people or to aid or abet in terrorism. - John Ashcroft, U.S. Attorney General

b. "...It is my responsibility, at the direction of the President, to exercise those core executive powers the Constitution so designates. The law enforcement initiatives undertaken by the Department of Justice, those individuals we arrest, detain or seek to interview, fall under those core executive powers." - John Ashcroft, U.S. Attorney General

c. "A sleeper is a committed terrorist sent sometimes years in advance into a possible target location, where he may assume a new identity and live an outwardly normal life, all the while waiting to launch a terrorist attack....Now how are we going to combat the terrorists' use of sleepers? We could continue as before and hope for the best, or we can do what we are currently doing-pursuing a comprehensive and systematic investigative approach that uses every available lawful technique to identify, disrupt and, if possible, incarcerate or deport persons who pose threats to our national security." - Michael Chertoff, a Justice Department official

Opposition to the Detentions

a. "The Patriot Act authorizes the Attorney General to lock up aliens, potentially indefinitely, on mere suspicion, without any hearing and without any obligation to establish to a court that the detention is necessary to forestall flight or danger to the community.... The Justice Department refuses to disclose even the most basic information about most of the detainees, such as who they are, what they are being held for or where they're imprisoned....Never in our history has the government engaged in such a blanket practice of secret incarceration."-David Cole, law professor, Georgetown University

b. "Initially, it was a huge sweep, and it seemed like there was some basis for thinking these people might have some information on terrorists. But as things have gone on, it has come to seem very broad and overreaching, a fishing expedition instead of a targeted law enforcement effort."-Jeanne A. Butterfield, Executive Director of the American Immigration Lawyers Association

c. "Uzma Naheed is a Pakistani woman whose husband and brother were taken from their New Jersey homes in the middle of the night by INS (Immigration and Naturalization Service) officers this past fall. Four months later, she had still not seen her brother and had no idea why either man was being held. 'No one is telling us what is going on,' she said tearfully. Like many families of detainees, she and her children have been left without any financial support, and she has had to sell her belongings to buy food."
-Liza Featherstone, The Nation, 4/1/02

2. MILITARY COMMISSIONS

President Bush issued a Military Order on November 13 providing for military commissions or tribunals to try non-citizens charged with terrorism because "an extraordinary emergency exists." The Order states further "it is not practicable to apply in military commissions under this order the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts."
Mainly because the President's order did not include the rules for such commissions, there were widespread criticisms that it disregarded the Constitution, would deny prisoners due process and called for secret trials which would probably lead to swift convictions and executions.

On March 21, 2002 the Bush administration announced what the procedures would be, making concessions to earlier criticisms but not entirely eliminating them. The rules now include a presumption of innocence; the right of prisoners to have military lawyers paid for by the government and to have civilian lawyers at their own expense; access to the prosecution's evidence; a public trial conducted by military officers (though classified information will be kept secret); a two-thirds vote for conviction but unanimity for the death penalty.

Among the criticisms of the rules are that they permit hearsay evidence; do not provide for an independent civilian appeals procedure; allow indefinite detention; and might not result in the release of prisoners even if they are acquitted.

Support for the Military Commissions

a. "I have reserved the option of trial by military commission for foreign terrorists who wage war against our country. Noncitizens, non-U.S. citizens who plan and/or commit mass murder are more than criminal suspects. They are unlawful combatants who seek to destroy our country and our way of life. And if I determine that it is in the national security interest of our great land to try by military commission those who make war on America, then we will do so..." -President Bush

b. "What happens if, in the course of this war, we apprehend or capture an enemy and we want to bring him to justice? What if the information necessary to bring him to justice would compromise our capacity to keep America safe. It seems like to me the president of the United States ought to have the option to protect the national security interests of the country, and therefore protect America from further attack." - President Bush

c. "Like presidents before him, President Bush has invoked his power to establish military commissions to try enemy belligerents who commit war crimes. In appropriate circumstances, these commissions provide important advantages over civilian trials. They spare American jurors, judges, and courts the grave risks associated with terrorist trials. They allow the government to use classified information as evidence without compromising intelligence or military efforts. They can dispense justice swiftly.... Enemy war criminals are not entitled to the same procedural protections as people who violate our domestic law ....The President's order authorizes the Secretary of Defense to close proceedings to protect classified information. It does not require that any trial, or even portions of a trial, be conducted in secret.... The order specifically directs that all trials before military commissions will be 'full and fair.' Everyone tried before a military commission will know the charges against him, be represented by qualified counsel, and be allowed to present a defense....Military commissions do not undermine the constitutional values of civil liberties or separation of powers; they protect them by ensuring the United States may wage war against external enemies and defeat them."-Alberto R. Gonzales, counsel to President Bush

d. "If one steps back from examining the procedures provision by provision and instead drops a plumb line down through the center of all, we believe that most people will find that, taken together, they are fair and balanced and that justice will be served in their application." -Secretary of Defense, Donald H. Rumsfeld

Opposition to Military Commissions
a. "Not to have an independent court of appeals and then to have the President have the final say potentially undercuts whatever fairness they've sought to provide at the trial level." -Jamie Fellner, Human Rights Watch

b. "They create a tribunal that they say is fair, but then they can say, 'We don't like the results and the hell with it, we're going to hold you anyway.' This is a follow-on to their policy of holding people indefinitely before you charge them."-Don Rehkopf, co-chairman of the military law committee of the National Association of Criminal Defense Lawyers

c. "The Bush administration's plans for military tribunals to try suspected terrorists are less troubling now than they were when the idea was first announced four months ago. But there is still no practical or legal justification for having the tribunals. The United States has a criminal justice system that is a model for the rest of the world. There is no reason to scrap it in these cases."- New York Times editorial, 3/22/02

d. "'Foreign terrorists who commit war crimes against the United States, in my judgment, are not entitled to and do not deserve the protections of the American Constitution,' says John Ashcroft in defense of the tribunals. First, the reasoning is alarmingly circular in Ashcroft's characterization of those who have not yet been convicted as 'terrorists.'....Second, it is worrisome when the highest prosecutor in the land declares that war criminals do not 'deserve' basic constitutional protections. We confer due process not because putative criminals are 'deserving' recipients of rights-as-reward....What makes rights rights is that they ritualize the importance of solid, impartial, and public consensus before we take life or liberty from anyone, particularly those whom we fear. We ritualize this process to make sure we don't all suffer the grief of great tragedies to blind us with mob fury, inflamed judgments and uninformed reasoning." - Patricia J. Williams, law professor, Columbia University

LESSON THREE

1. Begin with student questions, those listed already or any new ones. Which can be answered by the group?

2. Divide the class into groups of four, two from Group l and two from Group 2. Each side should present its case on each issue in turn. The other side should listen, except to ask clarifying questions. Each side should then challenge the other side's arguments and present the strongest case it can for its position on each issue.

3. Class discussion. Have the students determine which arguments are most valid. Seek to have them develop a resolution or synthesis that incorporates the best thinking of the class on both issues.

4. Ask students to review their answers to the questionnaire on Student Worksheet 1 and consider which answers, if any, they would now change.

5. Assignment: Write a paper in which you discuss any three responses to the questionnaire you would now change, explaining why. If you would not change any responses, select three and explain why you would not change your answers.

d. Orders of Attorney General John Ashcroft
1) To permit law enforcement officials to listen in on lawyer-client conversations
2) To interview 5,000 men of Middle Eastern origin
3) To loosen regulations on spying on political organizations and churches
4) To hold secret hearings in immigration courts

Bibliography

Books and periodicals
Irving Brant, The Bill of Rights: Its Origin and Meaning
Henry Steele Commager, ed., Documents of American History
William O. Douglas, An Almanac of Liberty
William H. Rehnquist, All the Laws But One: Civil Liberties in Wartime
Alan Shapiro, et al, America, Land of Change: Rights
Benjamin P. Thomas, Abraham LincolnNewsweek, 12/10/01The Nation, various issuesThe New York Times, various issues